STATE FARM MUT. AUTO. INS. v. UNIVERSAL UNDERWRITERS INS., No. 1999-CA-01685-SCT.

• Decision Date: 11 October 2001
• Docket Number: No. 1999-CA-01685-SCT.
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY.
• Court: Mississippi Supreme Court

797 So.2d 981

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY.

No. 1999-CA-01685-SCT.

Supreme Court of Mississippi.

October 11, 2001.

Peter C. Abide, James N. Compton, Biloxi, for Appellant.

Susan Latham Steffey, Jackson, for Appellee.

Before BANKS, P.J., SMITH and MILLS, JJ.

BANKS, Presiding Justice, for the Court:

¶ 1. This liability insurance coverage dispute between two insurers presents the issue of whether a car dealership's garage keeper policy provides primary coverage for a permissive user despite the fact that the policy on its face does not extend coverage beyond certain designated operators and anyone else "required by law to be an insured." Because we conclude that the language in the policy clearly and unambiguously limits policy coverage and the Motor Vehicle Safety Responsibility Law does not mandate coverage, we affirm the judgment of the trial court finding no coverage.

I.

¶ 2. In November 1996, Turan-Foley Chevrolet-Buick-Geo, Inc. ("Turan-Foley") loaned a vehicle to Carl Fitzgerald ("Fitzgerald") while Fitzgerald's vehicle was being repaired at the car dealership. Fitzgerald hit another car while returning to the dealership. The injured party submitted a claim against Fitzgerald for property damage and personal injuries. At the time of the accident, Fitzgerald was insured under an automobile policy with State Farm Mutual Automobile Insurance Company (State Farm). Universal Underwriters Insurance Company (Universal) insured Turan-Foley. State Farm settled the claim with the injured party. Universal denied coverage to Fitzgerald asserting that he was not insured under Universal's policy with Turan-Foley.

¶ 3. State Farm filed a motion for declaratory judgment against Universal alleging that Universal had a primary duty to defend Fitzgerald. Universal moved for summary judgment contending as a matter of law, the Universal Policy excluded Fitzgerald from coverage. In turn, State Farm filed a cross-motion for summary judgment arguing that the relief sought in its declaratory judgment action should be granted. In September 1999, the Circuit Court Judge granted the summary judgment motion of Universal. State Farm appeals to this Court for relief from this judgment.

II.

¶ 4. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56. On appeal, this Court reviews an order granting summary judgment de novo. Mosby v. Moore, 716 So.2d 551, 557 (Miss.1998).

a.

¶ 5. The section of the Universal policy at issue is Unicover Coverage, Part 500 which is titled "Garage Operations and Auto Hazard." The provisions relevant to the facts of this case provide:

WE will pay all sums the Insured legally must pay as DAMAGES ... because of INJURY to which this insurance applies caused by an OCCURRENCE arising out of GARAGE OPERATIONS and AUTO HAZARDS

* * *

"AUTO HAZARD" means the ownership, maintenance, or use of any AUTO YOU own or which is in YOUR care, custody or control and:

(1) used for the purpose of GARAGE OPERATIONS;

(2) used principally in GARAGE OPERATIONS with occasional use for other business or nonbusiness purposes;

(3) furnished for the use of any person or organization.

* * *

WHO IS AN INSURED—

* * *

With respect to the AUTO HAZARD:

(1) YOU;

(2) Any of YOUR partners, paid employees, directors, stockholders, executive officers, a member of their household or a member of YOUR household, while using an AUTO covered by this Coverage Part, or when legally responsible for its use. The actual use of the AUTO must be by YOU or within the scope of YOUR permission;

(3) any CONTRACT DRIVER:

(4) Any other person or organization required by law to be an INSURED while using an AUTO covered by this Coverage Part within the scope of your PERMISSION.

¶ 6. It is well-established law in Mississippi that a liability insurance policy covering the vehicle involved in an accident provides primary coverage. Travelers Indem. Co. v. Chappell, 246 So.2d 498, 505-06 (Miss.1971). Accord, State Farm Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co., 601 F.Supp. 286, 289-90 (S.D.Miss.1984); Garriga v. Nationwide Mut. Ins. Co., 813 F.Supp. 457 (S.D.Miss. 1993). Because it is undisputed that Turan-Foley was the owner of the vehicle involved in the accident and Universal insures Turan-Foley it follows, State Farm posits, that Universal is the primary carrier.

¶ 7. This argument is without merit. State Farm cites to Travelers for the proposition that the insurer of the vehicle involved in the accident is the primary carrier. In Travelers, this Court established that: "[T]he rule is: the policy of the owner of the vehicle involved in the accident is ordinarily considered to be the `primary policy.'" Travelers, 246 So.2d at 505 (emphasis added). The policy in Travelers and, thus, the stated rule, is distinguishable from the instant case. ¶ 8. In Travelers, while the underlying plaintiff's car was being repaired, the service center loaned her a car. Travelers, 246 So.2d at 499. She collided with another car while driving the loaner vehicle. Id. The underlying defendant served State Farm, the underlying plaintiff's carrier, and Travelers, the insurer of the service center. Id. Each policy contained an "escape" clause relieving it of liability in the event the insured had "other insurance" covering the liability.¹Id. at 500. The trial court entered a judgment prorating the liability of each insurer and all the parties appealed. Id. The parties appealed to this Court. Id.

¶ 9. The Travelers Court recognized the difficulty in reconciling an insurer's "liability but for other insurance" clauses in automobile policies when both policies contained escape and excess clauses. Id. at 504. It began by holding that the escape clauses found in the two policies were "repugnant and nugatory" and concluded that the two excess clauses were not applicable. Id. Because the Court eliminated the excess and escape policies, it proceeded by considering the remaining apportionment clauses in each policy. Id. at 505. The Court concluded that both of the policies were liable and determined that the owner of the vehicle involved in the accident had the primary policy and the customer had the excess policy. Id. at 505. Travelers also noted that this Court had previously held that the garage policy was the primary policy in a similar case dealing with excess v. escape clauses. Id. (citing International Serv. Ins. Co. v. Ballard, 216 So.2d 535 (Miss.1968)).

¶ 10. In the instant case, the question presented does not involve the question of coverage with two policies containing an escape clause or an excess clause. Nor does either insurer contend that it has no liability or limited liability due to an escape clause or an excess coverage clause. To the contrary, this case presents only a question of whether the Universal policy is available at all to this permissive user.

¶ 11. The policy language in Part 500 does not provide coverage for an individual using the car under these circumstances. The policy language explicitly provides for who is an insured—Turan-Foley, partners of Turan-Foley, paid employees of Turan-Foley, directors and stockholders of Turan-Foley, any member of their household and any contract driver, or any person required by law to be an insured.

b.

¶ 12. State Farm argues that because this policy does not contain clear, specific language indicating that permissive users are excluded from liability coverage, then the policy is ambiguous. Further, if there is any ambiguity in the contractual language, State Farm notes, such ambiguity is to be resolved in favor of the insured. Nationwide Mut. Ins. Co. v. Garriga, 636 So.2d 658, 662 (Miss.1994); Caldwell v. Hartford Acc. & Indem. Co., 248 Miss. 767-777, 160 So.2d 209, 213 (1964).

¶ 13. In State Farm Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co., 549 Pa. 518, 701 A.2d 1330 (1997), the Pennsylvania Supreme Court dealt with a factually similar case. The dealership loaned a car to a customer while her car was being repaired. Id. at 1331. The dealership was insured by Universal and the customer was insured by State Farm. Id. While driving the car, the customer was involved in a collision causing damage and injury to another vehicle; State Farm settled with the injured party. Id. State Farm brought a declaratory action against Universal and subsequently filed a motion for summary judgment. Id. The trial court partially granted State Farm's motion for summary judgment and apportioned liability between State Farm and Universal. Id. Both parties appealed to the Superior Court which affirmed the partial summary judgment, but reapportioned Universal's and State Farm's liability holding Universal primarily responsible for the liability. Id. Universal appealed to the Pennsylvania Supreme Court. Id.

¶ 14. That Supreme Court first addressed whether the customer was covered under Universal's policy. Id. at 1331. After examining the garage keepers policy language, which is exactly the same language presented in the instant case, the Court concluded that the customer was not "required by law" to be an insured under the Universal Policy. Id. The Court in making this determination examined Pennsylvania's Motor Vehicle Financial Responsibility Law and found that the language of the statute did not contain a provision which required that all permissive users of a vehicle be insured under the vehicle owner's policy of insurance. Id. The Court further explained that in order to resolve this issue it had to analyze whether such a requirement could be inferred from the statute. Id. The Court reasoned that reading the statute to require the vehicle owner to provide coverage for a permissive user where the...